Re Le and Minister for Immigration and Multicultural and Indigenous Affairs - [2005] AATA 407

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 407
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/232

GENERAL ADMINISTRATIVE DIVISION )

Re

Thanh Phong Le

Applicant

And

Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President
Date6 May 2005
PlaceSydney

Decision
The decision under review is affirmed.

..............................................
Professor GD Walker
Deputy President

CATCHWORDS
IMMIGRATION – visaex – on-shore visa cancellation – cancellation of transitional (permanent) visa on the grounds of a substantial criminal record – examination of the applicant’s criminal record including charges for supply of prohibited drug and steal motor vehicle – held that the applicant does have a substantial criminal record and accordingly fails the character test – discretion that the tribunal may exercise where the applicant fails the character test – examination of the applicant’s family situation in Australia and in Vietnam, work undertaken in prison, the applicant’s drug dependency – held the protection and expectations of the Australian community outweigh all other considerations – decision of the respondent affirmed.
Migration Act 1958 ss 499, 501, 501, 501(2), 501(6)(a), 501(6)(c)(i), 501(7)
Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION

6 May 2005 Professor GD Walker, Deputy President

Summary

1.      The applicant, Thanh Phong Le, who is aged 35 and a citizen of Vietnam, first came to Australia with his eldest sister on 5 July 1989 at the age of 19.   On 1 September 1994, he was granted a transitional (permanent) visa.
2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, found that the applicant did not pass the character test pursuant to s 501(6)(a) of the Migration Act 1958 (“the Act”) because of his past and present general conduct and because he has a substantial criminal record in Australia, including steal motor vehicle and supply prohibited drugs (two counts). The respondent therefore cancelled the applicant’s transitional (permanent) visa. This is the decision to be reviewed by the tribunal.
Background
3.      Mr Le was born in Vung Tau, Vietnam, on 21 February 1970 and is aged 35. He is a citizen of Vietnam. He first arrived in Australia on 5 July 1989, as the holder of a child migrant visa (G p22), with his eldest sister, at the age of 19. He was granted permanent residence upon his arrival. Prior to his arrival, Mr Le had worked in Vietnam as a fisherman.
4.      Between 1991 and 2004, Mr Le committed a large number of criminal offences (G8). His criminal record (he has used 14 aliases), which is 20 pages long, includes the following:

Charge Date

Court

Offence

Sentence

19/2/1991

Lidcombe Local Court, 24/7/1991

Break enter and steal

Nine months minimum term, three months additional, pay witness expenses and compensation.

20/2/1991

Bankstown Local Court, 8/7/1991

Break enter and steal

Recognisance s558 self $1,000, good behaviour bond for three years.

8/1/1993

Fairfield Local Court, 25/2/1993

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Re Le and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 407
Case: [2005] AATA 407
Decision Date: 6 May 2005

CaseChat Overview and Summary

The case of Re Le and Minister for Immigration and Multicultural and Indigenous Affairs involved an on-shore visa cancellation of a transitional (permanent) visa based on the applicant's substantial criminal record. The applicant contested the decision, and the matter was brought before the Administrative Appeals Tribunal (AAT). The Minister for Immigration and Multicultural and Indigenous Affairs sought to affirm the decision of the delegate to cancel the visa.

The primary legal issues before the court were whether the applicant's criminal record constituted a substantial criminal record as per the Migration Act 1958 and whether the Minister exercised the discretionary powers appropriately under section 501 of the Act. The court needed to examine the applicant’s criminal history, which included charges for supplying prohibited drugs and stealing a motor vehicle, to determine if these constituted a substantial criminal record. Additionally, the court assessed the Minister's exercise of discretion under section 501(7) of the Act, taking into account the applicant’s family situation, work done in prison, and drug dependency.

In its reasoning, the court found that the applicant indeed had a substantial criminal record, thereby failing the character test. The court examined the applicant’s criminal history, which included serious offences, and noted that these were significant factors in determining the character test. Regarding the exercise of discretion, the court considered the applicant’s family situation and personal circumstances, but ultimately concluded that the protection and expectations of the Australian community outweighed all other considerations. The court held that the Minister's decision to cancel the visa was justified and affirmed the decision.

The final order of the court was to affirm the decision of the Minister to cancel the visa, thereby upholding the delegate's decision.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		Thanh Phong Le

Charge Date	Court	Offence	Sentence
19/2/1991	Lidcombe Local Court, 24/7/1991	Break enter and steal	Nine months minimum term, three months additional, pay witness expenses and compensation.
20/2/1991	Bankstown Local Court, 8/7/1991	Break enter and steal	Recognisance s558 self $1,000, good behaviour bond for three years.
8/1/1993	Fairfield Local Court, 25/2/1993